Rule 9 - The Record on Appeal(a)Function; Composition. In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal. The components of the record on appeal include: the printed record, transcripts, exhibits and other items included in the record on appeal pursuant to Rule 9(d), any supplement prepared pursuant to Rule 11(c) or Rule 18(d)(3), and any additional materials filed pursuant to this Rule 9. Parties may cite any of these items in their briefs and arguments before the appellate courts. (1)Composition of the Printed Record in Civil Actions and Special Proceedings. The printed record in civil actions and special proceedings shall contain: a. an index of the contents of the printed record, which shall appear as the first page thereof;b. a statement identifying the judge from whose judgment or order appeal is taken, the session at which the judgment or order was rendered, or if rendered out of session, the time and place of rendition, and the party appealing;c. a copy of the summons with return, or of other documents showing jurisdiction of the trial court over persons or property, or a statement showing same;d. copies of the pleadings, and of any pretrial order on which the case or any part thereof was tried;e. so much of the litigation, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of all issues presented on appeal, or a statement specifying that the transcript of proceedings is being filed pursuant to Rule 9(c)(2), or designating portions of the transcript to be so filed;f. where an issue presented on appeal relates to the giving or omission of instructions to the jury, a transcript of the entire charge given; and identification of the omitted instruction by setting out the requested instruction or its substance in the record on appeal immediately following the instruction given;g. copies of the issues submitted and the verdict, or of the trial court's findings of fact and conclusions of law;h. a copy of the judgment, order, or other determination from which appeal is taken;i. a copy of the notice of appeal, of all orders establishing time limits relative to the perfecting of the appeal, of any order finding a party to the appeal to be a civil pauper, and of any agreement, notice of approval, or order settling the record on appeal and settling the transcript of proceedings if one is filed pursuant to Rule 9(c)(2) and (3);j. copies of all other documents filed and statements of all other proceedings had in the trial court which are necessary to an understanding of all issues presented on appeal unless they appear in another component of the record on appeal;k. proposed issues on appeal set out in the manner provided in Rule 10;l. a statement, where appropriate, that the record of proceedings was made with an electronic recording device;m. a statement, where appropriate, that a supplement compiled pursuant to Rule 11(c) is being filed separately;n. any order (issued prior to the filing of the record on appeal) ruling upon a motion by an attorney who is not licensed to practice law in North Carolina to be admitted pursuant to N.C.G.S. § 84-4.1 to appear in the appeal. In the event such a motion is filed prior to the filing of the printed record but has not yet been ruled upon when the printed record is filed, the printed record shall include a statement that such a motion is pending and the date that motion was filed;o. a statement, where appropriate, that copies of exhibits, copies of other items, or both have been included in the record on appeal pursuant to Rule 9(d) and are being filed separately; andp. a brief description of each original exhibit and other original item that has been included in the record on appeal pursuant to Rule 9(d).(2)Composition of the Printed Record in Appeals from Superior Court Review of Administrative Boards and Agencies. The printed record in cases of appeal from judgments of the superior court rendered upon review of the proceedings of administrative boards or agencies, other than those specified in Rule 18(a), shall contain: a. an index of the contents of the printed record, which shall appear as the first page thereof;b. a statement identifying the judge from whose judgment or order appeal is taken, the session at which the judgment or order was rendered, or if rendered out of session, the time and place of rendition, and the party appealing;c. a copy of the summons, notice of hearing, or other documents showing jurisdiction of the board or agency over persons or property sought to be bound in the proceeding, or a statement showing same;d. copies of all petitions and other pleadings filed in the superior court;e. copies of all items properly before the superior court as are necessary for an understanding of all issues presented on appeal unless they appear in another component of the record on appeal;f. so much of the litigation in the superior court, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of all issues presented, or a statement specifying that the transcript of proceedings is being filed pursuant to Rule 9(c)(2), or designating portions of the transcript to be so filed;g. a copy of any findings of fact and conclusions of law and of the judgment, order, or other determination of the superior court from which appeal is taken;h. a copy of the notice of appeal from the superior court, of all orders establishing time limits relative to the perfecting of the appeal, of any order finding a party to the appeal to be a civil pauper, and of any agreement, notice of approval, or order settling the record on appeal and settling the transcript of proceedings, if one is filed pursuant to Rule 9(c)(2) and (3);i. proposed issues on appeal relating to the actions of the superior court, set out in the manner provided in Rule 10;j. any order (issued prior to the filing of the record on appeal) ruling upon any motion by an attorney who is not licensed to practice law in North Carolina to be admitted pursuant to N.C.G.S. § 84-4.1 to appear in the appeal. In the event such a motion is filed prior to the filing of the printed record but has not yet been ruled upon when the printed record is filed, the printed record shall include a statement that such a motion is pending and the date that motion was filed;k. a statement, where appropriate, that a supplement compiled pursuant to Rule 11(c) is being filed separately;l. a statement, where appropriate, that copies of exhibits, copies of other items, or both have been included in the record on appeal pursuant to Rule 9(d) and are being filed separately; andm. a brief description of each original exhibit and other original item that has been included in the record on appeal pursuant to Rule 9(d).(3)Composition of the Printed Record in Criminal Actions. The printed record in criminal actions shall contain:a. an index of the contents of the printed record, which shall appear as the first page thereof;b. a statement identifying the judge from whose judgment or order appeal is taken, the session at which the judgment or order was rendered, or if rendered out of session, the time and place of rendition, and the party appealing;c. copies of all warrants, informations, presentments, and indictments upon which the case has been tried in any court;d. copies of docket entries or a statement showing all arraignments and pleas;e. so much of the litigation, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of all issues presented on appeal, or a statement specifying that the entire transcript of the proceedings is being filed pursuant to Rule 9(c)(2), or designating portions of the transcript to be so filed;f. where an issue presented on appeal relates to the giving or omission of instructions to the jury, a transcript of the entire charge given; and identification of the omitted instruction by setting out the requested instruction or its substance in the printed record immediately following the instruction given;g. copies of the verdict and of the judgment, order, or other determination from which appeal is taken; and in capitally tried cases, a copy of the jury verdict sheet for sentencing, showing the aggravating and mitigating circumstances submitted and found or not found;h. a copy of the notice of appeal or an appropriate entry or statement showing appeal taken orally; of all orders establishing time limits relative to the perfecting of the appeal; of any order finding defendant indigent for the purposes of the appeal and assigning counsel; and of any agreement, notice of approval, or order settling the record on appeal and settling the transcript of proceedings, if one is to be filed pursuant to Rule 9(c)(2);i. copies of all other documents filed and statements of all other proceedings had in the trial courts which are necessary for an understanding of all issues presented on appeal unless they appear in another component of the record on appeal;j. proposed issues on appeal set out in the manner provided in Rule 10;k. a statement, where appropriate, that the record of proceedings was made with an electronic recording device;l. a statement, where appropriate, that a supplement compiled pursuant to Rule 11(c) is being filed separately;m. any order (issued prior to the filing of the record on appeal) ruling upon any motion by an attorney who is not licensed to practice law in North Carolina to be admitted pursuant to N.C.G.S. § 84-4.1 to appear in the appeal. In the event such a motion is filed prior to the filing of the printed record but has not yet been ruled upon when the printed record is filed, the printed record shall include a statement that such a motion is pending and the date that motion was filed;n. a statement, where appropriate, that copies of exhibits, copies of other items, or both have been included in the record on appeal pursuant to Rule 9(d) and are being filed separately; ando. a brief description of each original exhibit and other original item that has been included in the record on appeal pursuant to Rule 9(d).(b)Form of Printed Record; Amendments. The printed record shall be in the format prescribed by Rule 26(g) and the appendixes to these rules.(1)Order of Arrangement. The items constituting the printed record should be arranged, so far as practicable, in the order in which they occurred or were filed in the trial tribunal.(2)Inclusion of Unnecessary Matter; Penalty. It shall be the duty of counsel for all parties to an appeal to avoid including in the printed record matter not necessary for an understanding of the issues presented on appeal. The cost of including such matter may be charged as costs to the party or counsel who caused or permitted its inclusion.(3)Filing Dates and Signatures on Documents. Every pleading, motion, affidavit, or other document included in the printed record should show the date on which it was filed and, if verified, the date of verification and the person who verified it. Every judgment, order, or other determination should show the date on which it was entered.(4)Pagination; Counsel Identified. The pages of the printed record shall be numbered consecutively, be referred to as "record pages," and be cited as "(R p ___)." Pages of the Rule 11(c) or Rule 18(d)(3) supplement shall be numbered consecutively with the pages of the printed record, the first page of the record supplement to bear the next consecutive number following the number of the last page of the printed record. These pages shall be referred to as "record supplement pages" and be cited as "(R S p ___)." Pages of the transcript of proceedings filed under Rule 9(c)(2) shall be referred to as "transcript pages" and be cited as "(T p ___)." At the end of the printed record shall appear the names, office addresses, telephone numbers, State Bar numbers, and e-mail addresses of counsel of record for all parties to the appeal.(5)Additions and Amendments to Record on Appeal. a.Additional Materials in the Record on Appeal. If the record on appeal as settled is insufficient to respond to the issues presented in an appellant's brief or the issues presented in an appellee's brief pursuant to Rule 10(c), the responding party may supplement the record on appeal with any items that could otherwise have been included pursuant to this Rule 9. The responding party shall serve a copy of those items on opposing counsel and shall file the items in a volume captioned "Rule 9(b)(5) Supplement." The supplement shall be filed no later than the responsive brief or within the time allowed for filing such a brief if none is filed.b.Motions Pertaining to Additions to the Record on Appeal. On motion of any party or on its own initiative, the appellate court may order additional portions of a trial court record or transcript sent up and added to the record on appeal. On motion of any party, the appellate court may order any portion of the record on appeal amended to correct error shown as to form or content. Prior to the filing of the record on appeal in the appellate court, such motions may be filed by any party in the trial court.(c)Presentation of Testimonial Evidence and Other Proceedings. Testimonial evidence, voir dire, statements and events at evidentiary and non-evidentiary hearings, and other trial proceedings necessary to be presented for review by the appellate court may be included either in the printed record in the form specified in Rule 9(c)(1) or by designating the transcript of proceedings of the trial tribunal as provided in Rule 9(c)(2) and (3). When an issue presented on appeal relates to the giving or omission of instructions to the jury, a transcript of the entire charge given shall be included in the printed record. (1)When Testimonial Evidence, Voir Dire, Statements and Events at Evidentiary and Non-Evidentiary Hearings, and Other Trial Proceedings Narrated-How Set Out in Printed Record. When an issue is presented on appeal with respect to the admission or exclusion of evidence, the question and answer form shall be utilized in setting out the pertinent questions and answers. Other testimonial evidence, voir dire, statements and events at evidentiary and non-evidentiary hearings, and other trial proceedings required by Rule 9(a) to be included in the printed record shall be set out in narrative form except where such form might not fairly reflect the true sense of the evidence received, in which case it may be set out in question and answer form. Parties shall use that form or combination of forms best calculated under the circumstances to present the true sense of the required testimonial evidence concisely and at a minimum of expense to the litigants. Parties may object to particular narration on the basis that it does not accurately reflect the true sense of testimony received, statements made, or events that occurred; or to particular questions and answers on the basis that the testimony might with no substantial loss in accuracy be summarized in narrative form at substantially less expense. When a judge or referee is required to settle the record on appeal under Rule 11(c) and there is dispute as to the form, the judge or referee shall settle the form in the course of settling the record on appeal.(2)Designation that Transcript of Proceedings in Trial Tribunal Will Be Used. Appellant may designate in the printed record that the testimonial evidence will be presented in the transcript of the evidence of the trial tribunal in lieu of narrating the evidence and other trial proceedings as permitted by Rule 9(c)(1). When a transcript of those proceedings has been made, appellant may also designate that the transcript will be used to present voir dire, statements and events at evidentiary and non-evidentiary hearings, or other trial proceedings when those proceedings are the basis for one or more issues presented on appeal. Any such designation shall refer to the page numbers of the transcript being designated. Appellant need not designate all of the transcript that has been made, provided that when the transcript is designated to show the testimonial evidence, so much of the testimonial evidence must be designated as is necessary for an understanding of all issues presented on appeal. When appellant has narrated the evidence and other trial proceedings under Rule 9(c)(1), the appellee may designate the transcript as a proposed alternative record on appeal.(3)Transcript of Proceedings-Settlement, Filing, Notice, Briefs. Whenever a transcript is designated to be used pursuant to Rule 9(c)(2): a. it shall be settled, together with the other components of the record on appeal, according to the procedures established by Rule 11;b. appellant shall file the transcript pursuant to Rule 12 with the clerk of the appellate court in which the appeal has been docketed;c. in criminal appeals, upon settlement of the record on appeal, the district attorney shall notify the Attorney General of North Carolina that the record on appeal has been settled; andd. the briefs of the parties must comport with the requirements of Rule 28 regarding complete statement of the facts of the case and regarding appendixes to the briefs.(4)Presentation of Discovery Materials. Discovery materials offered into evidence at trial shall be brought forward, if relevant, as other evidence. In all instances in which discovery materials are considered by the trial tribunal, other than as evidence offered at trial, the following procedures for presenting those materials to the appellate court shall be used: Depositions shall be treated as testimonial evidence and shall be presented by narration or by transcript of the deposition in the manner prescribed by this Rule 9(c). Other discovery materials, including interrogatories and answers, requests for admission, responses to requests, motions to produce, and the like, pertinent to issues presented on appeal, may be set out in the printed record or may be sent up in accordance with Rule 9(d).(5)Electronic Recordings. When a narrative or transcript has been produced from an electronic recording, the parties shall not file a copy of the electronic recording with the appellate division except at the direction or with the approval of the appellate court.(d)Exhibits and Other Items. Exhibits and other items that have been filed, served, submitted for consideration, admitted, or made the subject of an offer of proof may be included in the record on appeal under this subsection if a party believes that they are necessary to understand an issue on appeal. To the extent practicable, the parties should include copies of exhibits and copies of other items in the record on appeal rather than originals. (1)Copies. Copies of exhibits and other items that are letter size documents may be included in the printed record or may be grouped together and presented to the appellate court in one or more separate Rule 9(d) volumes. Each separate volume must be paginated and indexed, and it must display at the top of the first page this notice: "Rule 9(d) Copies of Exhibits and Other Items." Copies of exhibits and other items that are oversized documents or non-documentary items may be presented to the appellate court individually but must be labeled as a copy.(2)Originals. Original exhibits and other original items that have been settled as part of the record on appeal may be relied on by the parties in their briefs and arguments, but they may not be delivered to the appellate court without the appellate court's permission. a.Delivering Originals to the Appellate Court. If a party believes that the appellate court should examine an original exhibit or other original item, then that party must file a motion with the appellate court that asks for permission to deliver the original exhibit or other original item. The movant must explain the relevance of the original exhibit or other original item to the appeal and identify its custodian. If the appellate court allows the motion, then the custodian must promptly deliver the original exhibit or other original item to the clerk of the appellate court in a manner that ensures its security and availability for use in further trial proceedings. If the custodian is not a party, then the clerk of the appellate court must send the appellate court's order allowing the motion to the custodian. The clerk of the appellate court will add the original exhibit or other original item to the case file when the appellate court receives it. Nothing in this subsection precludes the appellate court from ordering the delivery of an original exhibit on its own initiative.b.Removing Originals from the Appellate Court. A custodian who has delivered an original exhibit or other original item to the appellate court must remove it at the direction of the clerk of the appellate court. If the custodian does not remove the original exhibit or other original item as directed, then the clerk of the appellate court may dispose of it.287 N.C. 671; 303 N.C. 715; 304 N.C. 737; 312 N.C. 803; 368 N.C. 1067; 324 N.C. 585; 324 N.C. 613; 327 N.C. 671; 345 N.C. 765; 347 N.C. 679; 354 N.C. 598; 354 N.C. 609; 358 N.C. 831; 361 N.C. 732; 363 N.C. 901; 365 N.C. 583; 369 N.C. 763; 371 N.C. 974; 375 N.C. 1034; 379 N.C. 694.
Amended November 17, 2020, effective 1/1/2021; amended 1/14/2021; amended October 13, 2021, effective 1/1/2022; amended June 18, 2024, effective 6/18/2024.